Guns-Letter-PghGuy
Harvested from a Google Document after a pointer from a blog comment. Letter November 24, 2008 To: Councilman Patrick Dowd City County Building, suite 510 414 Grant Street Pittsburgh, PA 15219 RE: Lost and Stolen Gun Ordinance Councilman Dowd: The purpose of this letter is to follow-up on my testimony during the November 20th public hearing regarding the proposed lost and stolen firearms ordinance. I would also like to respond to contentions made by others at both that hearing as well as the November 18th post-agenda hearing. Since most of the testimony in the two hearings seemed to focus on the potential effectiveness of this proposed legislation, I will address that issue first (even though it will become a moot point if, in fact, council does not have the authority to enact the legislation). I will then address the question of whether or not City Council has the authority to enact this legislation. I will specifically address Council President Doug Shield’s reliance on the case of Minich v. Jefferson County and on a case involving Baltimore and the State of Maryland in this section of this letter. Will the proposed ordinance be effective? Proponents of this legislation argue that it will provide another tool for the police and district attorney’s office to use in arresting and prosecuting “straw purchasers”, thereby cutting down on the number of guns illegally possessed by criminals. This is, of course, a very laudable goal. However, the proposed ordinance will do absolutely nothing toward accomplishing that goal. The argument put forth by supporters of the legislation is that, as the law currently stands, when police recover a gun that is used in a crime and trace it back to the purchaser, the purchaser simply claims that the gun has been lost or stolen. Because this assertion is difficult to refute, it becomes problematic for the police and district attorney’s office to prosecute the purchaser of the firearm even if the purchaser truly did knowingly facilitate a straw purchase. This situation is characterized as a “loophole”, and the supporters of this legislation claim the new law will resolve this loophole. However, the legislation is (necessarily) worded in such a way that the duty to report the gun lost or stolen only takes effect “upon discovery” that the firearm is lost or stolen. Thus, the legislation will only lead straw purchasers to, when confronted by police, change their standard lie from “it was stolen/lost a while ago” to “I don’t think that could be my gun officer. Let me go get it for you.” When the straw purchaser returns to the officer and says, “Gee, officer, I can’t find it. I just now discovered it is either lost or has been stolen”, the police and the district attorney’s office are left in exactly the same position in which they currently find themselves. The straw purchaser’s “revised” story is no more easily refuted than the current story. Clearly, straw purchases would be no more difficult or risky under the proposed new ordinance. Similar ordinances in other cities and states have not accomplished their intended objective either. For example, Cleveland has had a lost and stolen gun ordinance on the books for twelve years. Over the course of those twelve years, only two people have been prosecuted under the ordinance. In fact, to the best of my knowledge, the proponents of this ordinance have yet to cite a single city or state in which such an ordinance has been an effective tool for combating straw purchases. Does council have the authority to enact the ordinance? As was repeatedly noted at both the post-agenda hearing and the public hearing, section 6120 of the Pennsylvania Uniform Firearms Act (UFA) prohibits municipalities from “in any manner…regulating the lawful ownership of firearms”. Pennsylvania Consolidated Statutes Title 18: Chapter 61: § 6120. Limitation on the regulation of firearms and ammunition. (a) General rule.--No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth. Violating this preemption clause is a misdemeanor of the first degree as per section 6119 of the UFA: Pennsylvania Consolidated Statutes Title 18: Chapter 61: § 6119. Violation penalty. Except as otherwise specifically provided, an offense under this subchapter constitutes a misdemeanor of the first degree. Further, Title 53 §2962(g) of the Pennsylvania Consolidated Statutes states “a municipality shall not enact any ordinance or take any other action dealing with the regulation of the transfer, ownership, transportation or possession of firearms”. As was also noted in both hearings and by the City Solicitor’s office, the UFA preemption clause has been upheld by the state courts (including the State Supreme Court) in several cases. The two most notable cases are Ortiz v. Commonwealth, Pa. and Clarke v. House of Representatives. The Ortiz case is notable because the City of Pittsburgh was one of the appellants and was held to be in violation of the preemption clause as a result of passing several local ordinances attempting to regulate the lawful ownership of firearms. The Clarke case is notable because it deals specifically with a lost and stolen firearms ordinance passed by the City of Philadelphia. In Clarke, the courts specifically held that cities may not enact lost and stolen firearms ordinances as doing so is a violation of the UFA preemption clause. These are the cases upon which Pittsburgh’s City Solicitor’s office correctly relied in providing an objective legal opinion to council regarding the unlawful nature of the newly proposed ordinance. Rather than accept this reality, however, Council President Shields berated our City Solicitor’s office for not following suit with the Philadelphia solicitor who incorrectly cited Minich v. Jefferson County to support his opinion. In Minich, a local ordinance barring weapons from the Jefferson County Courthouse was upheld. Minich is not relevant, however, because there is already a state law against carrying a gun into a courthouse and the Jefferson County ordinance precisely mirrored that existing state law (18 Pa. C.S. §913), and that is why the Jefferson county ordinance is legal. Pittsburgh council’s newly proposed lost and stolen firearms ordinance, on the other hand, does not mirror any state law. Even more plainly irrelevant is Council President Shields’ citing of a case involving Baltimore versus the State of Maryland as evidence that council members in Pittsburgh, Pennsylvania, can go against their own state’s UFA preemption clause. Clearly, a parallel cannot be drawn across state lines. It is also worth noting that the Philadelphia district attorney has publicly disagreed with the Philadelphia solicitor and has stated that she would not prosecute anyone under Philadelphia’s lost and stolen firearms ordinance because it is unconstitutional (with respect to the Pennsylvania state constitution). Finally, the argument has been put forth that the lost and stolen firearms law is not a violation of the preemption clause because it regulates the illegal, rather than lawful, “use” of guns. This argument is fatally flawed. Having a firearm stolen or lost is not illegal and one remains the lawful owner of a firearm even after it is lost or stolen. Yet, the newly proposed legislation clearly imposes a regulation not on the illegal user of the firearm, but on the lawful owner of the firearm. The argument that this ordinance would not violate the UFA preemption clause because it supposedly only targets “illegal use” of a firearm also ignores the fact that Title 53 §2962(g) bars municipalities from enacting an ordinance regulating transfer, ownership, transportation or possession of firearms, without regard to whether that ordinance targets legal or illegal behavior. (This is not an issue in Minich because the ordinance in question in that case was a county ordinance and Title 53 §2962(g) does not apply to counties.) The bottom line is that the City of Pittsburgh is clearly prohibited from enacting the newly proposed ordinance. The statutes are clear. The case law is clear. What will be the ramifications of passing this ordinance, in terms of a cost/benefit analysis? Passing this ordinance will provide no benefit and will be quite costly. As Councilman Burgess repeatedly pointed out in last week’s hearings, if this ordinance is passed, the city will be sued. The city would need to spend valuable time and resources in court, fighting the same losing battle Philadelphia is already fighting. Every tax dollar and every hour of public servant time that is spent needlessly fighting a losing cause that is already being fought elsewhere could, instead, be used to actually address some of the causes of urban violence. That money could be used to put more police patrols into the neighborhoods, and to help fund prevention programs aimed at providing youth with practical alternatives to hanging out in the streets. The time city attorneys spend in court could perhaps be used to help create more efficient legal strategies to target criminals. Public policy should be based on an objective and rational analysis of empirical evidence, rather than on emotional reactions to anecdotal incidents, however tragic those incidents may be. In fact, implementing rational policy based on empirical evidence will be more effective in preventing those tragic incidents from being repeated in the future. Councilman Dowd, my impression from both hearings is that you do understand that this ordinance would be ineffective and costly. It seems that you also would like to substantively address the problem of violent crime in our city. Therefore, I ask you and the rest of council to vote against this ordinance and to use your time and the taxpayers’ money to find ways to address the actual root of the problem. The development of ineffective “feel good” legislation that scapegoats inanimate objects and causes us to “take our eye off the ball” is a distraction from this noble effort. Passing the proposed ordinance would result in an irresponsible waste of taxpayer dollars and public servant time that would be much better spent finding and implementing real solutions to violent crime. Thank you for your attention to this matter. Sincerely, XXXXXXXX (name removed from google document) Cc: Council President Doug Shields Councilperson Darlene Harris Councilperson Dan Deasy Councilperson Bruce Kraus Councilperson Jim Motznik Councilperson Tonya Payne Councilperson William Peduto Councilperson Rev. Ricky Burgess City Solicitor George Specter Mayor Luke Ravenstahl